Citation Nr: 9819036
Decision Date: 06/22/98 Archive Date: 07/06/98
DOCKET NO. 97-27 036 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Albuquerque, New Mexico
THE ISSUE
Entitlement to service connection for porphyria cutanea
tarda.
ATTORNEY FOR THE BOARD
Eileen Colbert, Associate Counsel
INTRODUCTION
The appellant served on active duty from January 1974 to
October 1974. The discharge certificate shows that he had no
foreign service.
This matter comes before the Board of Veterans' Appeals (the
Board) from an October 1996 rating determination by the
Department of Veterans Affairs (VA) Regional Office (RO) in
which the RO denied service connection for porphyria cutanea
tarda as a result of claimed exposure to herbicides.
In July 1996, the appellant filed a claim for service
connection for porphyria cutanea tarda. The appellant’s
claim was denied by a rating action from the RO dated October
1996. The RO determined that the appellant had no Vietnam
service nor was there any evidence that he was exposed to
herbicides. The appellant filed a notice of disagreement in
June 1997. The RO sent the appellant a statement of the case
in March 1998 at which point he perfected his appeal. This
matter is now before the Board on appeal.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends that in January or February of 1974
during his basic training at Fort Leonard Wood, Missouri, he
was exposed to Agent Orange. He asserts that since Agent
Orange was manufactured and shipped from Fort Leonard Wood,
he had a great chance of being exposed to the herbicide. He
also stated that although he was not diagnosed with porphyria
cutanea tarda until 1987, the reason that he was honorably
discharged early was because of blisters on his arms, hand
and chest, which he contends is a symptom of his disability.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the appellant’s
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that
the appellant has not met the initial burden of submitting
evidence sufficient to justify a belief by a fair and
impartial individual that the claim to entitlement to service
connection for porphyria cutanea tarda is well-grounded. The
benefit sought on appeal is denied.
FINDINGS OF FACT
1. The appellant served on active duty January 1974 to
October 1974 with no documented service in Vietnam.
2. Competent medical evidence linking the appellant’s
current skin disability with his military service has not
been presented.
CONCLUSION OF LAW
The appellant has not submitted evidence of a well-grounded
claim for entitlement to service connection for porphyria
cutanea tarda. 38 U.S.C.A. § 5107(a) (West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The appellant asserts that service connection is warranted
for porphyria cutanea tarda due to exposure to herbicides,
specifically Agent Orange, during service.
The threshold question as to all claims presented is whether
the claim is well-grounded under 38 U.S.C.A. § 5107(a). A
well-grounded claim is a plausible claim which is meritorious
on its own or capable of substantiation. Murphy v.
Derwinski, 1 Vet. App. 78, 81 (1990). There must be more
than an allegation; the claim must be accompanied by
supporting evidence that justifies a belief by a fair and
impartial individual that the claim is plausible. Tirpak v.
Derwinski, 2 Vet. App. 609, 611 (1992). Additionally, the
United States Court of Veterans’ Appeals (Court) held that a
claim must be accompanied by evidence (emphasis in original).
Id. at 611.
The United States Court of Appeals for the Federal Circuit
has held that “a well grounded claim is a plausible claim,
one that appears to be meritorious on its own or capable of
substantiation. Such a claim need not be conclusive but only
possible to satisfy the initial burden § 5107(a). For a
claim to be well grounded, there must be (1) a medical
diagnosis of a current disability; (2) medical, or in certain
circumstances, lay evidence of in-service occurrence or
aggravation of a disease or injury; and (3) medical evidence
of a nexus between an in-service disease or injury and the
current disability. Where the determinative issue involves
medical causation, competent medical evidence to the effect
that the claim is plausible is required.” Epps v. Gober,
126 F 3d. 1464, 1468 (Fed. Cir. 1997) [emphasis added by the
Board]; see also Caluza v. Brown, 7 Vet. App. 498, 506
(1995).
Factual Background
The service medical records disclose that the appellant was
found to be physically qualified for service in January 1974.
Review of the appellant’s July and August service medical
records indicates that the appellant received psychiatric
treatment in 1974. The psychiatrist certified that the
appellant had frequent attacks of anxiety and rashes of a
psychosomatic nature related to his inability to deal
constructively with various situations.
On the separation examination in September 1974, the
appellant’s skin was clinically evaluated as normal. The
appellant also denied having any skin diseases on his medical
history report.
Of record is an April 1994 Social Security Administration
decision. Therein it is stated that “[t]he medical records
show the claimant has a history of skin problems since
1987.” Porphyria cutanea tarda was evidently first diagnosed
in 1993.
Relevant Law and Regulations
In order to be entitled to service connection for a disease
or disability, the evidence must reflect that a disease or
disability was either incurred or aggravated by military
service. 38 U.S.C.A. § 1110 (West 1991).
Service connection may be granted for any disease diagnosed
after discharge, when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. Presumptive periods are not intended to
limit service connection to diseases so diagnosed when the
evidence warrants direct service connection. 38 C.F.R.
§ 3.303(d) (1997).
A veteran who, during active military, naval, or air service,
served in the Republic of Vietnam during the Vietnam era and
has a disease listed at § 3.309(e) (1997), shall be presumed
to have been exposed during such service to an herbicide
agent containing dioxin, such as Agent Orange, unless there
is affirmative evidence to establish that the veteran was not
exposed to any such agent during that service. 38 C.F.R.
§ 3.307 (a)(6)(1997).
Regulations provide a list of diseases that are considered to
be associated with herbicide exposure for purposes of
presumptive service connection. The following diseases shall
be service-connected if the requirements of 38 C.F.R. §
3.307(a)(6) are met, even though there is no record of such
disease during service, provided further that the rebuttable
presumption provisions of 38 C.F.R. § 3.307(d), are also
satisfied: chloracne or other acneform disease consistent
with chloracne, Hodgkin's disease, non-Hodgkin’s lymphoma,
porphyria cutanea tarda, soft-tissue sarcoma, multiple
myeloma, and certain respiratory cancers.
Analysis
While the appellant had active service during the Vietnam
era, see 38 C.F.R. § 3.2(f), his service records do not
establish that he had service in the Republic of Vietnam.
The appellant’s DD Form 214 reflects that he had no foreign
service. Therefore exposure to Agent Orange is not presumed.
He is, therefore, not afforded the statutory presumption of
exposure to Agent Orange. See 38 U.S.C.A. § 1116; 38 C.F.R.
§§ 3.307(a)(6), 3.309(e).
Notwithstanding the foregoing, the United States Court of
Appeals for the Federal Circuit determined that the Veterans'
Dioxin and Radiation Exposure Compensation Standards
(Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98
Stat. 2725, 2727-29 (1984) does not preclude an appellant
from establishing service connection with proof of actual
direct causation. Combee v. Brown, 34 F.3d 1039 (Fed.Cir.
1994). Pursuant to the holding in Combee, service connection
may still be established if it can be otherwise shown that
the currently diagnosed porphyria cutanea tarda is related to
his military service. In this case, however, the record on
appeal does not include competent medical evidence which
etiologically links the appellant’s disease to his period of
service, including alleged Agent Orange exposure during
service. Review of the appellant’s medical records reveals
that the veteran’s separation examination in October 1974 was
normal. Specifically, the skin examination was evaluated as
normal. The only record of a skin abnormality was a
certificate dated September 1974 from a psychiatrist that the
appellant had “frequent attacks of anxiety and rashes of a
psychosomatic nature.” There is no competent medical
evidence, then or now, which etiologically links veteran’s
porphyria cutanea tarda disease, which was evidently first
shown in 1987, many years after the veteran’s discharge from
service, with his period of service. The appellant has not
presented any competent medical evidence to show that the
psychosomatic rashes reported in service are related to his
current disability.
The Board will briefly deal with the appellant’s assertion
that since he thinks that Agent Orange was manufactured and
shipped from his training camp at Fort Leonard Wood,
Missouri, there is a great likelihood that he was exposed to
this herbicide during basic training. Such statement is not
sufficient to justify a belief by a fair and impartial
individual that he was indeed exposed to Agent Orange in
service. The appellant has provided no evidence which
corroborates his statement that Agent Orange was present at
Fort Leonard Wood. He further has not presented any
evidence, aside from his own speculation, that he was exposed
to Agent Orange at Fort Leonard Wood. He has not described
any incident consistent with such exposure or any other basis
for his contention.
The Board further observes that, contrary to the appellant’s
assertion in a June 1997 statement that he was discharged
from military service due to skin problems, his September
1974 separation physical examination was pertinently
negative. Rather, a September 1974 psychiatric consultation
made it clear that the appellant’s problem at that time, and
the reason why he was discharged from military service after
approximately nine months, was “maladjustment, emotional
difficulties and problems coping with life” manifested by
among other problems frequent absences without leave. A
character disorder, inadequate type, was diagnosed.
The Court has held that, where the determinative issue is one
of medical etiology or a medical diagnosis, competent medical
evidence must be submitted to make the claim well-grounded.
See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The
veteran’s contentions are not probative as to whether his
skin condition is related to his service because, as a lay
person, he is not competent to render a medical opinion. See
Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992). The Board
therefore finds that there is no competent medical evidence
in the record suggesting a direct causal link between service
and porphyria cutanea tarda.
In summary, elements (2) and (3) of the Epps/Caluza analysis
have not been satisfied in this case. The appellant’s claim
of entitlement to service connection for porphyria cutanea
tarda is therefore not well grounded. The benefit sought on
appeal is denied.
Additional matters
When the Board addresses in its decision a question that has
not been addressed by the RO, in this case well groundedness
it must consider whether the veteran has been given adequate
notice to respond and, if not, whether he has been prejudiced
thereby. Bernard v. Brown, 4 Vet. App. 384 (1993). The
Board concludes, however, that the appellant has been
accorded ample opportunity to present evidence and argument
in support of his claim, and any error by the RO in the
adjudication of the claim on a broader basis than that
applied by the Board could not be prejudicial.
The statutory duty to assist the appellant in the development
of his claim does not arise unless and until a well-grounded
claim is presented. Gilbert v. Derwinski,
1 Vet. App. 49,55 (1990). Although when a claim is not well
grounded, the VA does not have a statutory duty to assist a
veteran in developing facts pertinent to his claim, the VA
may be obligated to advise a veteran of the evidence needed
to complete the application. This obligation depends upon
the particular facts of the case and the extent to which the
Secretary of the VA has advised the veteran of the evidence
necessary to be submitted with a VA benefits claim.
Robinette v. Brown, 8 Vet. App. 69 (1995). By this decision,
the Board is providing the appellant with notice of the
evidentiary insufficiency of his claim, and what evidence
would be necessary to make the claim well grounded.
ORDER
Service connection for service connection for porphyria
cutanea tarda is denied.
Barry F. Bohan
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
- 2 -